Following the amendment of the Nationality Immigration and Asylum Act 2002, Section 82, by the Immigration Act 2014, the available Grounds of Appeal; and the appealable decisions were significantly reduced. A number of immigration decisions are now only susceptible to administrative Review, others to only out of country appeal rights etc. One of such immigration decisions affected is a decision to curtail leave to remain.
Prior to the amendment, an applicant whose leave is curtailed, such that he or she no longer has leave to remain in the UK, will have a right of appeal to the First Tier Tribunal. Such appeal could be brought on various grounds, including as contained in the now repealed Section 84 of the 2002 Act. This is no longer the case with the current amendment introduced by the Immigration Act 2014.
The severity of the changes is such that there is no appeal right whatsoever against a decision to curtail leave to remain in the UK. This is particularly significant, and imposes significant hardship on mostly points-based migrants – Tier 4 (Student) migrants, Tier 1 migrants, and Tier 2 migrants, etc.
The common trend is that the Home Office routinely curtails leave to remain in the United Kingdom for alleged breach of conditions, such as working over 20 hours, in the case of Tier 4 (Student) migrants, or working for a business other than the business for which leave was granted in the case of Tier 1 (Entrepreneur) migrants. These examples by no means reflect all the potential scenarios where curtailment of leave to remain could be effected by the Home Office.
The Grounds upon which leave to enter or remain may be curtailed are set out in Paragraph 323, 323A, 323AA, 323B and 323C of the Immigration Rules. Further, there are provisions within relevant Home Office Policy Guidance regarding the manner in which the exercise of power to curtail ought to be exercised and the evidential requirement. It is also very significant to note that the power to curtail is a discretionary one, in terms of the wordings of the Immigration Rules.
Unfortunately, in practice, it is more often than not that immigration enforcement officers, who usually make these decisions, tend to do so without taking into account all relevant factors; and also not recognising that there is a wide scope for exercise of discretion in certain cases. They are very poorly made; and without a statutory right of appeal, challenge of such erroneous decision has become difficult for applicants.
The consequences are such that a lot of these cases are now being challenged by way of Petition for Judicial Review, as this is the only remedy available in the meantime.
We at Drummond Miller have significant experience in dealing with such decisions to curtail leave to remain in the United Kingdom. We have been instructed on a number of these cases, a significant number of which remain outstanding. In dealing with these types of cases, it is important that the correct step, Rules, Policy, etc, identified from the very beginning. If you have any case involving a decision to curtail leave to remain in the UK, we will be happy to assist.